McLauchlan v Egan
[2025] WASC 342
•22 AUGUST 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MCLAUCHLAN -v- EGAN [2025] WASC 342
CORAM: GETHING J
HEARD: ON THE PAPERS
DELIVERED : 22 AUGUST 2025
FILE NO/S: CIV 1907 of 2025
BETWEEN: ELIZABETH GRACE MCLAUCHLAN
Plaintiff
AND
LUKE HEINSEN EGAN as executor of the will of LEONIE MARIA HEINSEN
First Defendant
MATTHEW HEINSEN EGAN as executor of the will of LEONIE MARIA HEINSEN
Second Defendant
LUKE HEINSEN EGAN as beneficiary of the estate of LEONIE MARIA HEINSEN
Third Defendant
MATTHEW HEINSEN EGAN as beneficiary of the estate of LEONIE MARIA HEINSEN
Fourth Defendant
Catchwords:
Family provisions and maintenance - Application by de facto - Whether deceased made adequate provision for the proper maintenance of her de facto by her will - Negotiated outcome reached between parties
Legislation:
Family Provision Act 1972 (WA) s 6(1)
Result:
Orders made for further provision from the estate of the deceased to the plaintiff in terms of memorandum of consent orders filed on 15 August 2025
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Culshaw Miller Lawyers |
| First Defendant | : | GC Lawyers |
| Second Defendant | : | GC Lawyers |
| Third Defendant | : | GC Lawyers |
| Fourth Defendant | : | GC Lawyers |
Case(s) referred to in decision(s):
Abrahams (By His Litigation Guardian Public Trustee of Queensland) v Abrahams [2015] QCA 286
Butler v Britt Helen Butler as executrix of the estate of Colin Armitage Butler [2025] WASC 181
Hill v Jennifer Patricia Murray as beneficiary of the estate of Alec Kumar Sodhy [2023] WASC 482
Hodder v Australia Executor Trustees Ltd as administrator of the estate of Reece William Hodder [No 2] [2021] WASC 415
Keremestevski v Shaun McLeod (as executor of the estate of Mark Adrian Mcleod) [2024] WASCA 12
McLauchlan v Egan [2025] WASC 321
Musasghi v Gebremariam [2022] WASCA 37
Schaechtele v Otto Wilhelm Schaechtele as Executor of the Will of Maria Regina Grundner‑Schaechtele [2008] WASC 148
GETHING J:
Introduction
By application filed 12 August 2025, the plaintiff, Elizabeth McLauchlan (Plaintiff) seeks further provision from the estate of the late Leonie Maria Heinsen (Deceased) pursuant to Family Provision Act 1972 (WA) (FPA) s 6(1) (Application). The Application was able to be bought pursuant to a grant of leave made by me on 11 August 2025 (Leave Application).[1] The factual background to the proceedings is set out in the Leave Decision, which I refer to without the need to repeat. I adopt the same abbreviations. As part of the Leave Decision I determined that the Plaintiff was in a de facto relationship with the Deceased immediately before her death, giving the Plaintiff standing to make an application pursuant to FPA s 6(1).[2]
[1] McLauchlan v Egan [2025] WASC 321 (Leave Decision).
[2] Leave Decision [6] - [30].
The orders made on 11 August 2025 were made in terms of a consent order filed by the parties on 5 August 2025. The consent orders were part of a settlement of the Plaintiff's claim from the estate of the Deceased following a mediation facilitated by the court. Pursuant to that settlement, after each defendant filed a memorandum of appearance in the Application, on 15 August 2025 the parties filed a further consent order, in the following terms (15 August Consent Orders):
1.The parties' application for orders be dealt with on the papers in the absence of the parties.
2.Pursuant to s 6 of the Family Provision Act 1972 (WA) (Act), provision be made for the proper maintenance, support and advancement in life of the Plaintiff, Elizabeth Grace McLauchlan, from the estate of Leonie Maria Heinsen (the Deceased) by the distribution of the Deceased's estate (Estate) as if the Deceased's Will dated 3 October 2008 (Will) had been amended in accordance with s 10 of the Act to provide that the Plaintiff is to receive the Deceased's 2/3 interest in 81 Mallee Fowl Way, Margaret River, such that:
(a)clause 3 of the Will should be taken to read as follows:
I GIVE DEVISE AND BEQUEATH my two third interest in the property known as Lot 7 on Plan 17104, being the whole of the land contained in Certificate of Title Vol 1854 Folio 814 and more commonly referred to as 81 Mallee Fowl Way, Margaret River to ELIZABETH GRACE McLAUCHLAN absolutely.
(b)clause 4(a) of the Will should be taken to be deleted.
3.A certified copy of this order be made upon the Grant of Probate of the Will and within 10 days of the date of this order the First and Second Defendants shall produce the Grant of Probate to the Court for that purpose.
4.The Plaintiff pay the fixed sum of $15,000 towards the First and Second Defendants' costs and disbursements in CIV 2507/2024 and this proceeding.
5.Otherwise, the First and Second Defendants' costs of an incidental to CIV 2507/2024 and this proceeding be paid out of the residuary estate so that they are completely indemnified for their costs, save in so far as they are of an unreasonable amount or have been unreasonably incurred.
6.There otherwise be no order as to costs.
The court cannot make the 15 August Consent Orders unless it is satisfied that the jurisdiction conferred by FPA s 6(1) is enlivened.[3]
[3] Butler v Britt Helen Butler as executrix of the estate of Colin Armitage Butler[2025] WASC 181 [8] (Whitby J); Schaechtele v Otto Wilhelm Schaechtele as Executor of the Will of Maria Regina Grundner‑Schaechtele [2008] WASC 148 [4] - [7] (Le Miere J) (Schaechtele).
For the reasons which follow, I am satisfied that the jurisdiction conferred by FPA s 6(1) is enlivened and that orders in terms of the 15 August Consent Orders would be a proper exercise by the court of that discretion.
One of the orders I made on 11 August 2025 in the Leave Application was that the Plaintiff have leave to rely on the affidavits filed in the Leave Application in the present Application.[4]
[4] Set out at Leave Decision [4].
The power in FPA s 6(1) is enlivened if the court is of the opinion that the disposition of the Deceased's estate effected by the Will is not such as to make adequate provision from her estate for the proper maintenance, support, education or advancement in life of the Plaintiff. I summarised the principles relating to the exercise of this power in the Leave Decision, which I adopt.[5]
[5] Leave Decision [46] - [47].
Jurisdiction
The onus is on the Plaintiff to satisfy the court on the balance of probabilities that the disposition of the Deceased's estate to her was not such as to make adequate provision for her proper maintenance, support, education or advancement in life.[6]
[6] Keremestevski v Shaun McLeod (as executor of the estate of Mark Adrian Mcleod) [2024] WASCA 12 [45] (judgment of the court); Musasghi v Gebremariam[2022] WASCA 37 [106] - [107] (judgment of the court); Hill v Jennifer Patricia Murray as beneficiary of the estate of Alec Kumar Sodhy [2023] WASC 482 [111] (Seward J).
At the time of the death of the Deceased, the Plaintiff was 53 years old. She was a drug and alcohol worker at WACHS with a net fortnightly income of $993.98. She had another source of income, being rental income from the Margaret River Property in the order of $100 per fortnight. Her expenditure then exceeded her income by about $700 per fortnight, though this was due to her on carers leave to look after the Deceased.
The Plaintiff's assets had a total value of about $280,000. Her assets included her 1/3 interest in the Margaret River Property (leased out since 2000) and her purchased leasehold interest in 89 Gunners Lane.
The Plaintiff suffers from physical ailments, including incomplete quadriplegia from a car accident in 1983 and suffers from chronic pain. She requires a second knee replacement but is unable to afford it. Her mental health has significantly deteriorated since the Deceased's death and she was recently diagnosed with a major depressive disorder. This has limited the Plaintiff's earning capacity as she is only able to work 0.8 FTE. She wishes to retire to the Margaret River region which was her plan with the Deceased. Upon selling her interest in 89 Gunners Lane ($159,000), she would be unable to afford to purchase a property given her superannuation balance ($125,000), outstanding loan liabilities (roughly $155,000) and the fact that she is currently 61 years of age and looking to retire in three to five years.
The only clause in the Will benefitting the Plaintiff was cl 3, which reads:[7]
3.I GIVE DEVISE AND BEQUEATH my one eighth undivided share in the property Lot 9017 on Plan 201655 and known as site 5 Meerup Multiple Occupancy, Northcliffe aforesaid to be shared equally between JOYE MADDISON and ELIZABETH GRACE McLAUCHLAN as tenants in common in equal shares in the event that. I am survived by one or both of my sons.
[7] First McLauchlan Affidavit, page 29.
In cl 4, the Plaintiff was a residuary beneficiary in the event that both Luke and Matthew predeceased her. This did not occur. Had it occurred, then by cl 4(a), the Plaintiff would have received the two thirds interest of the Deceased in the Margaret River Property.
The value of the half of the 1/8 interest in the Meerup property is in the order of $2,000. It does not appear to be readily realisable.
Neither Luke nor Matthew, the Executors of the Will and residuary beneficiaries, placed before the court any evidence to contradict that of the Plaintiff. I accept the Plaintiff's evidence. The fact that Luke and Matthew signed the 15 August Consent Orders may be taken as their agreement that the Will did not make adequate provision for the Plaintiff.[8]
[8] Schaechtele [16].
The net value of the estate of the Deceased is now in excess of $2 million. The amount given to the Defendant was insignificant and, at least on the materials before me, does not appear to be realisable. Significantly, the Estate included a property in which both the Deceased and the Plaintiff had an interest. The Plaintiff and the Deceased were in a de facto relationship for nearly 20 years, giving rise to a strong moral claim. The Plaintiff's assets are modest, her means of improving her position limited and her needs significant.
I am satisfied that the disposition of the Deceased's Estate effected by the Will is not such as to make adequate provision from her Estate for the proper maintenance, support, education or advancement in life of the Plaintiff.
Discretion
Having found that adequate provision has not been made, the court must consider whether to exercise the discretion to order further provision to be made out of the Estate of the Deceased. The court must determine what provision it 'thinks fit' should be made out of the Estate of the Deceased for the proper maintenance, support, education or advancement in life of the Plaintiff. The court must take into account the relevant facts as they exist at the time of the making of the order.
As set out in the Second McLauchlan Affidavit, the Plaintiff's current financial position has improved, largely due to changes in the property market. Her net asset position is now about $406,000. Her fortnightly income exceeds her expenses by about $600 per week.
In relation to the exercise of this discretion in the context of considering a consent order, Le Miere J observed in Schaechtele:[9]
This court cannot make an order giving effect to the proposed settlement unless the court thinks that such provision should be made out of the estate of the deceased for the proper maintenance or support of the plaintiff. But that does not mean that the court is in effect to hear the matter as if it was a contested application and then to give or to withhold orders to give effect to the settlement by comparing the settlement with the judgment which the court would have given. The court must give proper consideration to the evidence before it. The court should be aware of the risks of litigation in an area in which reasonable people can reasonably reach different conclusions and give proper weight to the fact that the parties wish to effect the settlement. If the court is satisfied that the settlement falls within the bounds of a reasonable exercise of discretion then the court should make orders to give effect to the settlement.
[9] Schaechtele [18]; Hodder v Australia Executor Trustees Ltd as administrator of the estate of Reece William Hodder [No 2] [2021] WASC 415 [57] (Hill J); Abrahams (By His Litigation Guardian Public Trustee of Queensland) v Abrahams [2015] QCA 286 [35] (reasons of the court).
As set out in the 15 August Consent Orders, the settlement contemplates giving the Plaintiff the other two thirds of the Margaret River Property. This property was initially owned by the Plaintiff. The Deceased received her two thirds share back in 2004 in return for giving the Plaintiff the sum of $90,000, $50,000 of which was used to settle the family law claims against the Plaintiff which her ex-partner had brought against her, and $40,000 to discharge the amount remaining on the loan secured by a mortgage over the property.[10]
[10] First McLauchlan Affidavit, par 21.
The practical effect of the 15 August Consent Orders would be to allow the Plaintiff to live in the Margaret River Property, sell 89 Gunners Lane and extinguish her liabilities. Luke and Matthew would receive the remainder of the Estate, representing just under 70% of the current value of the net assets of the Estate.[11]
[11] Second Executor Affidavit, pages 5 and 6.
I am satisfied that the settlement as set out in the 15 August Consent Orders falls within the bounds of a reasonable exercise of discretion in FPA s 6(1) and thus would be a proper exercise by the court of that discretion.[12]
[12] Schaechtele [18].
I am likewise satisfied that the costs orders set out in the 15 August Consent Orders are appropriate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OS
Associate to the Honourable Justice Gething
22 AUGUST 2025
0
8
1